Court Challenges Scholars' Right To Quote From Private Documents

By ROBERT D. McFADDEN

Published: April 28, 1989

The right of historians and biographers to quote from letters, diaries and other unpublished primary source material has been challenged in a copyright infringement decision by a Federal appeals court in New York.

The court last week rejected the argument that the First Amendment should be taken into account in determining whether publication of a book may be barred even when only a small amount of previously unpublished material is quoted.

The court's language, similar to that in a 1987 decision that prohibited the publication of a biography on J. D. Salinger that quoted from his unpublished letters, has sent tremors through the publishing industry and among scholars and First Amendment lawyers.

But the decision escaped much publicity because it relied on a technicality to uphold a publisher's right to print an unflattering book about L. Ron Hubbard, the founder of the Church of Scientology. A Danish corporation related to the church had sought to bar the book on the ground that publishing parts of Mr. Hubbard's diaries and journals constituted a copyright infringement.

The United States Court of Appeals for the Second Circuit, in a unanimous ruling by a three-judge panel on April 19, upheld a lower court's refusal to enjoin Henry Holt & Company from publishing ''Bare-Faced Messiah,'' by Russell Miller. But it did so on the narrow ground that the plaintiffs had filed the suit too late.

And in an opinion signed by two of the judges, the court declared: ''The District Court denied an injunction for several reasons, one being the existence of special circumstances in which free speech interests were said to outweigh the interests of the copyright owner. We are not persuaded, however, that any First Amendment concerns not accommodated by the Copyright Act are implicated in that action.''

The opinion, by Roger J. Miner and Frank X. Altimari, said: ''An author's expression of an idea, as distinguished from the idea itself, is not considered subject to the public's 'right to know.' ''

Floyd Abrams, a lawyer who specializes in First Amendment cases, said of the decision: ''What the court has done is reject totally the notion that the First Amendment has any role to play in deciding whether to issue an injunction in a copyright case.''

Mr. Abrams added: ''If this decision were to be rigorously enforced, a possible practical effect is that if a newspaper obtains an unpublished letter from Oliver North about his role in the Iran-contra affair and publishes a significant portion of it, an injunction may be issued against the publication of the entire newspaper.''

Mr. Abrams noted that Judge Pierre N. Laval, in ruling on the Hubbard case in Federal District Court in New York last August, had also refused to issue an injunction against publication, but in doing so he said the courts should consider the free-speech rights of an author as well as the copyright interests of the plaintiff, especially if the material that is quoted is essential to demonstrate the point of a criticism.

Chief Judge James L. Oakes of the Second Circuit, in a separate opinion, concurred in the decision not to issue an injunction, but he sided with Judge Laval and disagreed sharply with Judges Miner and Altimari. Judge Oakes noted that their opinion ''tends to cast in concrete'' the language that the same court had used in deciding the Salinger case. Salinger Book Barred

In October 1987 the United States Supreme Court let stand, without comment, the Second Circuit's decision barring Random House from publishing Ian Hamilton's biography of Mr. Salinger unless brief quotations from and paraphrases of Mr. Salinger's letters were deleted.

The appeals court ruled that the letters, which had been donated to libraries and were open to perusal by scholars, still belonged to the writer.

While the Salinger and Hubbard materials were similar, the uses to which they were put by biographers were substantially different, lawyers noted yesterday. The Salinger letters were used to enliven the text, while the Hubbard letters were used to show how his private character was at odds with his public character, they said.

''The problem from the standpoint of biographers and historians is that they are trained to go to primary source materials, to diaries and letters, to get at what people were thinking,'' said Mark A. Fowler, one of the lawyers who defended Holt in the action brought by New Era Publications International, a Danish corporation licensed to hold copyrights bequeathed to the Church of Scientology by Mr. Hubbard, who died in 1986. Two Years of Argument

Robert M. Callagy, another lawyer who defended Holt, said that in the Salinger case the book, ''J.D. Salinger: A Writing Life,'' had not been printed when publication was enjoined, while 12,000 copies of the book on Mr. Hubbard had been printed and were ready for distribution before New Era -which had been arguing with Holt for two years over the use of the letters -filed its suit.

Then, at a time when an injunction would have necessitated scrapping the book and starting over to delete passages and reprint the edition, New Era filed suit, Mr. Callagy said. The appeals court held that New Era had waited too long and that no injunction should be issued.

All letters, diaries and other personal writings as well as novels, and other creative works are copyrighted automatically as soon as they are written, although a copyright may be registered at a later date. Under the doctrine of ''fair use,'' established in a number of court cases, the Copyright Act is not infringed by the use of an undefined small use of materials.